North Dakota officials seek dismissal of road closure suit

By Blake Nicholson&nbsp|&nbsp

Posted: Tue 1:21 PM, Jan 15, 2019

BISMARCK, N.D. (AP) — North Dakota officials have asked a federal judge to dismiss a lawsuit filed over the five-month closure of a section of highway during the large protests against the Dakota Access oil pipeline, saying they had both the authority and an obligation to do it.

The federal lawsuit brought by two members of the Standing Rock Sioux tribe and a reservation priest alleges that the closure of state Highway 1806 near the pipeline route north of the reservation unduly restricted travel and commerce and violated the free speech and religious rights of them and others.

It seeks unspecified monetary damages from state officials, Morton County and TigerSwan, a North Carolina-based company that oversaw private security for the Texas-based pipeline developer, Energy Transfer Partners.

Attorneys for the county and the state officials, including Republican Gov. Doug Burgum, contend in a court filing dated Friday that the highway shutdown was warranted because of “mayhem” caused by some of the thousands of demonstrators who gathered in the area in 2016 and early 2017 to protest the $3.8 billion pipeline, which now moves North Dakota oil to Illinois.

“The criminal behavior included trespassing, destruction of private property, vandalism, setting fire to multiple vehicles on the bridge, stampeding bison and shooting at law enforcement personnel in attempts to kill them, unlawfully blocking the highway, throwing Molotov cocktails and other projectiles at law enforcement, and evading and resisting arrest,” state Deputy Solicitor General James Nicolai wrote.

State officials closed a stretch of the highway just north of protest camps in October 2016 and didn’t reopen it until March 2017, after initial repairs to a bridge were completed and the protest camps were cleared out.

The highway is the main route between the reservation and Bismarck, the nearest large city. Plaintiffs allege that the closure was targeted at them and didn’t apply to pipeline workers, who were allowed to continue using that stretch of highway.

Nicolai and Shawn Grinolds, an attorney for Morton County, argue that at one point, the protesters, themselves, blocked the highway with hay bales and other objects and that for months, they ignored an evacuation notice issued by then-Gov. Jack Dalrymple. They argue that pipeline workers had a legitimate reason to use the highway and that blocking others from using it was not retaliatory.

“The plaintiffs’ peaceful protests were disrupted by a violent criminal faction that required responsible public officials to take necessary and appropriate steps to quell a criminal riot, protect private property from criminal activity and to ensure public safety,” Nicolai said.

TigerSwan asked to be dismissed as a defendant, arguing that it had nothing to do with the decision to close the road. Attorney Lynn Boughey also asked U.S. District Judge Dan Hovland to force the plaintiffs to pay the company’s attorney fees.

The three plaintiffs are reservation businesswoman Cissy Thunderhawk, pipeline opponent Waste’Win Young and the Rev. John Floberg of St. James’ Episcopal Church in Cannon Ball. They’re suing the county, its sheriff, Burgum and Dalrymple, and the heads of the state Transportation Department and Highway Patrol.

In addition to the monetary damages, the lawsuit seeks stricter rules for road closures in such instances and class-action status, meaning it would apply to all affected people, if granted.

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